The principal restriction of impeachment, by the use of evidence of misconduct, can result in a conviction of a witness
According to the principal restriction of impeachment, the use of evidence of misconduct can cause the conviction of a witness. Any misconduct that is compliant with the truthfulness of the witness’ evidence can result in impeachment of a witness even if an individual was not convicted for the kind of misconduct as a crime. If the witness intentionally gives false evidence and it is proven by the court, the witness can be convicted.
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There are two main restrictions which need to be observed by a cross-examiner before asking a witness any provocative questions with the aim of questioning his/her trustfulness and possible impeachment of an individual as a witness. These are the factual basis for asking particular questions because “no unfounded fishing expeditions are permitted for this form of cross-examination” (Garland, 2006, p. 160).
According to the second restriction, the interrogator has to accept the witness’ answer as it is if the witness is not convicted for this particular misconduct in the past. “Extrinsic evidence of instances of conduct that show false statement or dishonesty is not allowed” (Bocchino and Sonenshein, p. 157). For example, if a witness lied on his/her tax returns but was not convicted for it, the examiner can ask a related question because it can shed light upon the witness’ trustfulness but the answer should be accepted as it is.
Specific acts of misconduct can be related to the witness’ credibility but proper procedures of cross-examination need to be observed for using this evidence of misconduct for the impeachment of a person.
Examples pertaining to the waiver of privilege against self incrimination
Under the current legislation, the witness’ privilege against self-incrimination can be waived at the witness’ discretion. It is significant, that the right for this privilege can be claimed only by the witness and waiving it, the witness will have to keep to this decision throughout the whole case.
If the accused decides to take the stand in most cases it would mean waving the privilege against self-incrimination though there are rare exceptions to this rule. Thus, taking the stand and waving the privilege against self-incrimination, the accused will not be able to testify only about the issues which are favorable to him/her and then reject to answer the questions relating to unfavorable issues.
Still, the privilege against self-incrimination can be retained by the accused who takes the stand under particular circumstances. “Unless the defendant, during direct examination, testifies in such a way as to deny the crime generally or testifies to facts and circumstances relating to the crime, there is no waiver of the privilege” (Garland, 2006, p. 170).
For example, if a person is accused of robbery in a particular place and somebody claims of recognizing him because he was seen nearby a high school some 8 years ago, the defendant can take the stand for saying that he/she did not attend the school in question without waiving the privilege against self-incrimination. In this case, the defendant’s evidence is not linked to the crime or related circumstances.
Thus, the privilege of the accused against the self-incrimination has been retained and the prosecution will not have the right for the cross-examination.
Making a decision to waive the privilege against self-incrimination, an individual should bear in mind the waiver would be applied to the entire investigation and cannot be used for answering only the questions on favorable matters. The privilege can be retained by the accused who decides to take the stand in case if the evidence he/she gives is not related to the crime.
Bocchino, A. & Sonenshein, D. (2006). A practical guide to federal evidence: Objections, responses, rules and practice commentary. (7th ed.). Louisville, CO: National Institute for Trial Advocacy.
Garland, N. (2006). Criminal evidence (5th ed.). New York, NY: McGraw-Hill.